Blind Justice? Confessions Of A Biased Judge

June 1, 2016 (Mimesis Law) — Justice is blind, so goes the allegorical personification of the moral force of our justice system, symbolized by Justitia — Lady Justice, the Roman goddess of Justice. She carries balanced scales in her left hand and wears a blindfold representing objectivity and impartiality. But, we all know that justice is not blind, and that all judges and lawyers have a blind spot. Indeed, all vertebrates, literally, have a blind spot in each eye, a scotoma, (from the Greek word skótos for darkness), where the optic nerve exits the retina—the optic disk, lacking any photoreceptor cells. However, I want to focus, not on the ophthalmological, but on the cognitive bias blind spots we all share and their potential impact on doing justice, especially in our federal criminal justice system.

Legal scholars are increasingly relying on social sciences in general, and the cognitive sciences in particular, to explain and provide insights into how legal actors make decisions. At bottom, this scholarship suggests that judges are influenced by the same cognitive decision making process that most everyone uses, and that we are all afflicted by similar systematic errors in judgment. The “bias blind spot” represents one of these cognitive heuristics. Simply stated, it is our ability to recognize bias in others, but not in ourselves.

One study of administrative law judges found that 97% ranked themselves in the top half of judges attending the conference in their ability to “avoid racial prejudice in decision making” relative to the other judges attending the same conference. In studies I am currently conducting, 63% of lawyers at conferences in Austin (72 federal circuit staff attorneys); Seattle (105 lawyers who practice in federal court); St. Paul (48 lawyers who practice in federal court); Louisville (36 lawyers who practice in federal court) placed themselves in the top 25% of lawyers at their conference in their ability to “avoid racial prejudice in decision making”; and 69% rated themselves in the top 25% on their ability to “avoid gender prejudice in decision making.” Cutting-edge research indicates the bias blind spot is greater for important attributes than less important ones. Thus, being free from bias in decision making is obviously an important attribute for judges, lawyers, and probation officers in the criminal justice system.

Precisely because discrimination-free decision-making is so important to all the legal actors in the federal criminal system, and our general perception that we are better at bias free decision making than we really are, objective data about our own personal biases is mission critical. This is why I suggest every AUSA, AFPD, CJA lawyer, retained defense counsel, probation officer, magistrate judge, district judge, and circuit judge and our law clerks take several tests online that measure both explicit and implicit racial biases. The Modern Racism Scale (MRS) and the Perceived Racism Scale (PRS) are both measure of one’s self-reported explicit racial biases. While we generally know our explicit biases, self-testing for them is quick and well worth the effort.

More importantly, because we are unaware of our subconscious biases, we need to explore them. A large and rapidly expanding body of research indicates that if we look at several common implicit biases like race, gender, religion, national origin, etc., it is highly likely we all have some of them. I strongly encourage each reader to go online at Project Implicit and take at least 3 or 4 Implicit Association Tests (IAT’s), especially the most common one—race. Don’t worry, no one will know your results unless you choose to disclose them.

Here are my results. A decade ago, my co-professor in the Employment Discrimination Litigation law school class I taught for years, told me about Project Implicit and the IAT and suggested I take it. I took the black-white race IAT test. I showed a “strong” anti-black bias. I was shocked! First, my mother died when I was young and I was raised by a black nanny, Tessie, who I loved as much as my mother. I was a former civil rights lawyer who often represented blacks in a wide variety of civil rights, civil liberties, employment discrimination, and criminal defense work. Finally, just a few years after I had started my own firm, I hired a fourth partner, a black AUSA, and we became one of the first law firms in Iowa racially integrated at the partner level. Years later, after I was appointed, I swore him in as a new state court judge—one of the highlights of my career.

I retook the race IAT a few days after I originally took it and then a third time a few days after that. Same results. I assumed the test was invalid, and proceeded to read everything I could about the IAT. Over the next few months, I read hundreds of articles and finally concluded the test was valid. That led to my writing several law review articles about implicit bias in the legal system, adopting an approach to discussing implicit bias in jury selection, giving an implicit bias jury instruction, conducting several national empirical studies about implicit bias in the legal system and implicit bias of state and federal judges in sentencing. Those articles are scheduled to be published later this year. I also speak frequently on the subject and have had the privilege of training several thousand judges and lawyers about the potential effects of implicit bias in judicial, juror, and lawyer decision making, especially in sentencing.

I urge each of you to take several IAT’s of your choosing. I predict you will learn some surprising things about your own implicit biases. Then you will hopefully confront what, if anything, you need to do to lessen the impact of your subconscious biases on your decision making. Taking a few IAT’s is not very time consuming, it’s free, and regardless of your results, you are guaranteed some very, very interesting self-discovery. Oh, Lady Justice, I forgot to tell you. She brandishes a sword in her right hand. Perhaps you may wield yours differently after taking a few IAT’s.

A state judge once told me, “I was a prosecutor my whole career. I’m biased for the state, and I know it. But I do my best not to be. I don’t always get there, but I do try.”

No, he didn’t always get there but I agree he tried extremely hard. I greatly respected him for making the effort.

He was one of my favorite judges, too. Part of trying to be unbiased is a willingness to listen to counsel and consider the argument before making up your mind. He did that. From a practical standpoint there’s not a lot more you can ask for as a lawyer.

I, as a usually successful pro per, would like to know if there is a “pro se bias” (either for or against) test that judges can take? From personal experience, I know that many judges are biased against pro pers–which is why I was wondering. I don’t know by personal experience if juries tend to be biased against pro pers because I have only handled one case (a misdemeanor) pro per, and won, so I would like to know if juries tend to have a “pro se bias.”

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